Finnís Law

An Australian Justice

Paul Finn is one of Australia’s great jurists – a figure of national and international significance as both an academic and a judge. While perhaps known for his work on fiduciary obligations and equity more generally, Finn has also been at the forefront of many other areas of private and public law. His work on integrity of government has been particularly influential; his decision about native title sea rights just one of his many landmark judicial determinations. In this book, a stellar cast – Chief Justice James Allsop of the Federal Court, Justice Michael Barker of the Federal Court, Sir Ross Cranston of the Queens’ Bench, Professor Joshua Getzler of Oxford, Justice Stephen Gageler of the High Court, Associate Professor Pauline Ridge of the Australian National University, Professor John Williams of Adelaide and Professor Sarah Worthington of Cambridge – explore, analyse, celebrate and critique the writings and judgements of an exceptional legal figure.

From the Book Launch Fiduciary Obligations and Finn’s Law, address by The Hon Keith Mason AC QC, 9 February 2017...

“Fiduciary Obligations comes with a modern Introductory Comment by Paul himself, a Preface by Sir Anthony Mason, and the reproduction of two of Paul’s many extra-judicial contributions on the topic. These are an article on The Fiduciary Principle that first appeared in 1989 and another, called Fiduciary Reflections, that was published in 2014. The latter tracks developments in Paul’s thinking and scholarship on this topic over the past 40 years as well as its reception into law. ... Together, these two books will enable the discerning academic or practitioner to survey large swathes of law. The eminence of the various contributors allows us to be sure that we are shown where the law has come from, where it is going, and where the law in Australia is converging or diverging from that of overseas. Each book shows what vast strides have been made in the coherent understanding of legal and equitable principles, the magnetic interplay between statutory and judge-made law, and the convergence of public and private law discourse that has taken place in the 46 years since Paul Finn first slipped shyly into postgraduate studies at London University.” Read Launch Speech...

CONTENTS

3. Participatory Liability and the Hallmarks of an 'Australian Equity' Pauline Ridge

4. Conscience, Fair-dealing and Commerce – Parliaments and the Courts James Allsop

5. The Equitable Duty of Loyalty in Public Office Stephen Gageler

6. Personality and Capacity: Lessons from Legal History Joshua Getzler

7. To What End?: Public Law and Public Power John M Williams

8. To Akiba and Beyond: Old Hopes and New Dreams for Native Title Michael Barker

Index

REVIEWS

Paul Finn’s Fiduciary Obligations, first published in 1977, marks the whole field of fiduciary law today … Finn’s 1977 book has become a classic text for students, academics and practitioners. ... [The] volumes are recommended reading for students, scholars and practitioners, and should find their way into every law school library. In Cambridge lore, Fiduciary Obligations is constantly stolen from the Squire Law Library. It is expensive on the secondary market. This republication should balance supply and demand, and will continue to stimulate research. The perspectives opened up by the inclusion of Finn’s subsequent essays to the original text should by now be apparent; the republication therefore commends itself. Finn’s Law, an interesting mixture of legal biography and thematic explorations of particular aspects of Finn’s legacy, will be of interest even to those less interested in Finn the man. Many of the contributors to Finn’s Law close their remarks with personal acknowledgment of Finn’s contribution to their own journey in the law. Finn sent me an offprint of “Fiduciary Reflections” in 2014, while I was struggling to convince the Cambridge public lawyers, as he had 40 years previously, that fiduciary principles were relevant to the law of judicial review. His advice to me was: “Keep fighting, the sun will rise”. This echoed the closing words of a study in constitutional law by another great Cambridge equity scholar, F.W. Maitland. The task, to which both contributed in their own way, is of staggering breadth and complexity. Like Moses, Finn may have lead us out of Egypt – but, after 40 years in the desert, we are not yet in Canaan. This republication could provide the basis for a reorientation of fiduciary theory, or a footnote in a conversation dominated by defunct categories and dichotomies that generate more heat than light. We should all engage in some “fiduciary reflections” – or be content to wander in the dark. Read full review...

J.G. Allen, Cambridge Law Journal, 2017

Paul Finn and The Federation Press are to be praised in republishing his leading work, with the additional of two further essays. No lawyer worth his salt with a trust or pension practice should be without a copy of 'Finn'. ... Originally published in 1977, Paul Finn's Fiduciary Obligations has a justified status as a classic text, with myriad citations by the courts both in the UK, Australia, Ireland and elsewhere in the common law world. Unfortunately, Finn's book has been out of print for a number of years and it is almost impossible to get hold of a copy. Your reviewer's standing order search on the second-hand book sites has not revealed a copy for sale over many years! … So why is a law book that is now over 40 years old worth reprinting and purchasing now? Broadly it is because fiduciary law is such a tricky area and because the book is the best and clearest guide through many of the thickets. It is deservedly called a 'classic'... anyone seeking to get to the bottom of the duties and obligations of trustees, directors and indeed other fiduciaries (or indeed try to work out who is a fiduciary) needs to start with Paul Finn's book, and this is the case even though the law has (inevitably) moved on in the last 40 years.

The second book, Finn's Law, is an edited collection of papers which were delivered in 2016 at a conference in Canberra which celebrated the legal career of Paul Finn. This is a highly useful addition to the reprint of the expanded Fiduciary Obligations. It contains eight full chapters, each by a distinguished academic or judicial author. One, by Cranston J, looks at the legal life of Paul Finn (his career as an academic and as a judge) and the other seven look at individual legal topics. Read full reviews...

David Pollard, Trust Law International, Vol. 31, No. 1, 2017

When I mentioned to my friends that I had the opportunity of reading this book they looked at me like I had just beaten them in a chook raffle and said, “Oh, we love Finn”. And so I began to read . . . I was moved by Ross Cranston’s biographical contribution, “A Legal Life”. In particular the unexpected similarities I felt in reading about Justice Paul Finn’s parents’ and grandparents’ lives as compared to those of my own grandparents and great-grandparents. So often we think of our own families lives and histories as unique, but Cranston paints a picture of early 20th century Queensland which is not so different from Victoria of the times. I usually need to read the “about the contributors” section in volumes of collected essays but here it seems unnecessary, Perhaps it was really only included to observe the form. James Allsop, Michael Barker, Tim Bonyhady, Ross Cranston, Stephen Gageler, Pauline Ridge, John M Williams and Sarah Worthington all making contributions: examining among others “Fiduciaries”, “Duty of Loyalty in Public Office” and “Native Title”. These concepts are not dealt with in the abstract, as is clear from Finn’s career viewed as a whole. They are dealt with in a scholarly but practical way, grounded in reality. Such a pragmatic approach was a feature of Finn’s consulting during his academic career including to the WA Inc Royal Commission (the effects of which are still being felt 25 years later). Judges, lawyers, academics and students will love this.

Tasman Ash, InPrint, Law Institute Journal Victoria, June 2017

This work is an edited collection of papers which were delivered earlier this year at a conference in Canberra which celebrated the legal career of the Hon Paul Finn. Paul Finn is well known in Australia and internationally for his ground-breaking work on Fiduciary Obligations and for his work as an outstanding judge of the Federal Court of Australia. Although, his contribution to the law of fiduciary obligations has been significant and will be enduring, he contributed widely to many areas of the law including contract law and Native Title Rights. He had a particular interest in the integrity of governmental decision making. The conference in Canberra, which had the title “Finn’s Law”, reflected Paul Finn’s life by, not only covering those areas of the law which were close to his heart, but also by reason of the fact that the papers were delivered by many eminent persons who had worked with or had been taught by him. They include the Hon James Allsop, Chief Justice of the Federal Court, Justice Michael Barker of the Federal Court, Sir Ross Cranston of the Queens’ Bench, Professor Joshua Getzler of Oxford, Justice Stephen Gageler of the High Court, Associate Professor Pauline Ridge of the Australian National University, Professor John Williams of Adelaide and Professor Sarah Worthington of Cambridge.

The quality of the papers in the book is outstanding as one would expect and it is not possible to identify any as being better than others. That said, the papers by Professor Joshua Getzler, professor of law and Legal History at Oxford, and the paper concerning the manner in which values and principles inform commercial life and commercial law by the Hon James Allsop are well worth extra consideration. It would be wrong not to mention the contribution of Sir Ross Cranston, “A Legal Life”, which is a biographical consideration of Paul Finn’s life and his contribution to the law across academia and as a judge.